1611186 (Refugee)

[2018] AATA 4789

1611186 (Refugee) [2018] AATA 4789 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611186

COUNTRY OF REFERENCE:                  China

MEMBER:Louise Nicholls

DATE:10 October 2018

PLACE OF DECISION:  [City 1]

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2018 at 2:12pm

CATCHWORDS
REFUGEE – protection visa – China – social group – married to a Uighur man – husband granted protection visa – fears being subject to surveillance in China – insufficient evidence to support claims – no well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant claims to be a citizen of the People’s Republic of China and is now [age] years of age. She arrived in Australia on [date] June 2007 as the holder of a [temporary] visa.

2. The applicant was the holder of a [temporary] visa until 29 March 2010. Her application for a further [temporary] visa was refused in September 2011. Her bridging visa ceased on 6 October 2011, she held a short term bridging visa until 2 December 2011 and then was without a valid visa until she applied for a partner visa on 10 March 2014. She obtained a bridging visa in association with that application. Her partner visa was refused in September 2014 and her bridging visa ceased on 14 January on 2015.

3. On 20 March 2015 the applicant applied for a Protection visa. She provided a copy a statement setting out her claims, a copy of her husband’s passport and a copy of her [State 1] marriage certificate (DOM [date] September 2009). The applicant attended an interview with a delegate of the Minister for Immigration on 17 May 2016.

4. On 26 May 2016 the delegate refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) on the basis that the applicant did not meet the requirements for that visa.

5. This is an application for review of that decision and it was lodged with the Tribunal on 22 July 2016. The applicant provided a copy of the delegate’s decision record of 26 May 2016 with her application.

6. On 2 October 2018 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone.

7. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 25 October 2018. On 8 October 2018 the applicant’s representative advised that the applicant declined the hearing invitation and asked the Tribunal to assess the application on the material before it. This matter has therefore been determined on the evidence available to the Tribunal.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection.

10. The relevant law is set out in Attachment A.

    Claims

11. The applicant made claims in her application for protection and accompanying statement that she fears serious harm in China for reasons of her marriage to her ethnic Uighur husband. She stated that she is Han Chinese and her husband is an ethnic Uighur from Xinjiang Province.

12. She claims that she married her husband in September 2009 in [City 1]. She stated that her husband applied for protection in about 2012/2013 and had been granted refugee status in 2014. However, he had not included her as a member of his family unit at the time he applied for protection.

13. She claims that if she returns to China now or in the foreseeable future, she will be persecuted by the Chinese government authorities because they have a policy of strict monitoring and surveillance of Uighurs from Xinjiang.

14. She also stated that her family objected to her marriage to her husband and that if she returns to her small conservative community in Fuqing, her family and community members will mistreat her through teasing and degrading conduct because they consider Uighurs are “bad people”. Her family have had little contact with her because of their opposition to the marriage.

15. She claims she became pregnant in 2013 and suffered a miscarriage which resulted in her becoming depressed. She does not want to be separated from her husband and if he returned to China with her, the couple would face social ostracism due to the community’s racist attitudes. Alternatively if her husband remained in Australia they would be separated. She claimed she could not return to China and apply for a offshore partner visa because she was psychologically and financially dependent on her husband.

    Findings

16. The applicant provided a copy of her Chinese passport to the Department. The Tribunal accepts, on the basis of this material, that the applicant is a citizen of China and China is the receiving country for the purposes of s.36(2)(aa) of the Act.

17. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision‑maker is not required to make the applicant's case for him or her.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70.)

18. The applicant provided a written application form setting out some of her claims and some claims were included in an accompanying written statement. She also attended an interview where her claims were discussed with the delegate.

19. However, the written claims and subsequent oral submissions made at the interview[1] lack sufficient relevant detail to determine that the applicant meets the definition of refugee in s.5J(1) of the Act or that she meets the complementary protection criterion set out in s.36(2)(aa) of the Act.

    [1] Delegate’s Decision Record Tribunal File 1611186 ff.1-12

20. The applicant did not attend a hearing and this leaves the Tribunal with claims which are vague, untested and stated with an unsatisfactory level of generality. Further, the applicant did not provide the Tribunal with any evidence regarding her current circumstances or any current country information which might support her claims.

21. The Tribunal has noted the marriage certificate provided by the applicant and accepts that that the applicant and her husband registered their marriage in [City 1] in September 2009. There is no other current evidence relating to the nature of the spouse relationship.

22. The Tribunal does not accept, on the basis of the material before it, that if the applicant returned to China now or in the foreseeable future she would face serious harm from Chinese authorities due to her marriage to her ethnic Uighur husband. It does not accept she would be subject to monitoring, surveillance or harassment or any other mistreatment for this reason.

23. The Tribunal also does not accept that if the applicant returned to China now or in the foreseeable future she would face a level of social ostracism or discrimination, amounting to serious harm, from the local community in her home city or in China generally, for reasons of her marriage to her ethnic Uighur husband.

24. Accordingly the Tribunal is not satisfied that if the applicant returns to China in the foreseeable future, that she faces a real chance of harm for reasons of race or ethnicity, religion, membership of a particular social group or antigovernment opinion, imputed or otherwise, or any other reason set out in s.5J(1) of the Act.

25. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act.

26. The Tribunal does not accept the applicant’s claim that she is psychologically and financially dependent on her husband and would face harm if she was removed from Australia to China for this reason. She has not provided any psychological or financial evidence to support this claim or explain how this meets the criteria for complementary protection. She also claims she will suffer degradation and teasing if she returns to Fuqing due to the marriage, but the Tribunal considers there is insufficient relevant evidence to make a finding that the applicant will face degrading treatment or punishment if she is removed from Australia to China.

27. On the basis of the material before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    Conclusion

28. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

29. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

30. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Louise Nicholls
    Senior Member

    
    

    ATTACHMENT A

    Criteria for a protection visa

32. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

33. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

34. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

35. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

36. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

37. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …